Featured Post

About Me

I am Professor and Chair of the Department of Political Science and Public Administration at the University of North Carolina at Charlotte. I am also the editor of the academic journal The Latin Americanist.

Thursday, July 02, 2009

After quite a few posts and many comments on this blog, not to mention countless articles and blog posts elsewhere, many of them contradictory, several key points have started to stick in my mind about the coup in Honduras.

1. According to the constitution, taking Zelaya out of the country was illegal. Period.

2. Zelaya is charged with trying to amend the constitution to allow re-election of the president (which would be illegal), yet no one has ever provided evidence to that effect. It is illegal to amend seven particular parts of the constitution, but the wording of the proposed vote did not mention any of them.

I do not care if you are positive he wanted to, as that does not constitute evidence. He said before the coup that he would leave office in 2010. Maybe he was lying, maybe not. But it deserves more investigation before overthrowing him. Ousting a president requires more than just assumptions about intent.

3. At various times, commenters have mentioned Venezuela as intruding (such as with the plebiscite materials) but I have never seen the Supreme Court or Attorney General mention evidence.* Until I do, I think Venezuela is irrelevant. That Zelaya liked Hugo Chavez is not relevant to his standing as president. That Chavez says ridiculous things about invasion is not relevant to Zelaya's case either.

4. Zelaya was unpopular (even with his own party) and many people in Honduras are glad he's gone. This is irrelevant to the law. Surprisingly, I have not yet seen anyone make an argument for how a parliamentary system might have mediated the situation better--Honduran political institutions are so weak it might not have mattered.

34
comments:

I think point 2) is not correct though. I don't think the problem is whether he wanted reelection or not. The problem is that the referendum was deemed illegal yet he insisted on holding it. There's other, related stuff, such as illegally firing the Army chief who refused to follow his illegal orders regarding the referendum (in both cases the illegal part refers to judicial rulings).

If this is correct (and by now I'm a bit confused) this means that debate about what Zelaya had in mind or not is not relevant. What's relevant is that the courts told him he had to stop, period, and he repeatedly ignored their rulings. He even stormed a military base wit his supporters, after a negative judicial ruling, and esentially 'stole' the ballots.

Even if you think that the referendum should have been allowed, that is also not relevant. The judges ruled and that's that.

I wonder if you might understand, and explain in a post, the apparently quite confused Honduran impeachment law. It is the one area in this fiasco that is giving me fits. My latest understanding is that the standard impeachment process was somehow inadvertantly eliminated during a legal modification in the last few years, and that because of that change in the law it would take criminal charges brought before... the Supreme Court I assume, a guilty verdict and then... I don;t know what. What translates a guility verdict into stripping of powers? Any insight appreciated.

I attempted a summary of the Honduran mess here:http://thecrossedpond.com/?p=9006

On the question of intent: see this article from someone perhaps better situated to address the question: http://www.csmonitor.com/2009/0702/p09s03-coop.html

But let's say you are correct and the court dropped the ball. Regardless of your ideology you would say the US Supreme Court drops the ball on a regular basis and yet in our democratic society its decisions are respected without our citizens feeling the need to run to the UN for an appeal. The single most important issue in this debate is this: are the Honduran Congress and Supreme Court legitimate democratic institutions, and have they been throughout this crisis? To my knowledge nobody in the press or the diplomatic community is addressing this question.

If the answer to that question is yes, then isn't it for those institutions to decide, free from international pressure: (1) what the Honduran constitution requires or permits with respect to referendums or "non-binding initiatives"; (2) what remedies are required or permitted for constitutional violations (whether impeachment, loss of citizenship, imprisonment, etc.); and (3) what role, if any, the military should have had or should now have in seeing to it that those remedies are enforced?

Secretary Clinton referred to the Inter-American Democratic Charter as having influenced the US response. Article 19 governs an "unconstitutional interruption of the democratic order." I suppose the OAS itself is entitled to interpret its own document in deciding whether an "interruption of the democratic order" is in fact "unconstitutional," but if Honduras' legislative and judicial bodies are legitimate then it would seem a "constitutional/unconstitutional" determination from one or both of those bodies ought to control.

However appealing the knee-jerk "military junta" or "kangaroo court" narrative may be to those who haven't paid any attention to Honduras since Ronald Reagan was in office, in this case I have not seen or heard any evidence the military has at any time controlled or influenced the normal democratic process of the other branches of the Honduran government. If that were the case Zelaya would be questioning the legitimacy of those institutions from the floor of the UN General Assembly and to anyone else who would listen. Micheletti has been consistent in saying his executive power has arisen from a constitutional succession and/or from actions taken by the other branches, not the military, so if Zelaya can take away that argument his case for reinstatement would be all the stronger. Why isn't Zelaya making that argument, if it can be supported? And if it can't then why should any other country or international body be throwing its weight around in the matter?

The single most important issue in this debate is this: are the Honduran Congress and Supreme Court legitimate democratic institutions, and have they been throughout this crisis?

No, they have not operated in the manner of legitimate democratic institutions in this crisis. When the court ordered the arrest and expulsion of a democratically-elected president, it preempted the kind of open and transparent legal processes that any legal attempt to remove a president would require. By no stretch of the imagination could we say that Honduras' High Court and Congress have operated according to the rule of law. Any legal procedure to remove a president would be open and transparent, in much the same way that the impeachment proceedings against Carlos Andres Perez (of Venezuela) and Fernando Collor (of Brazil) were. You can't just summarily arrest and expel a democratically-elected president. Any institution that seeks to remove a president in a legal manner would do so by way of open, transparent legal proceedings in which the accused has the right to a legal defense.

Regarding point 1- You only have Zelaya's word for that ascertain. Period.Regarding point 2 - Zelaya was proposing, illegally, to write a whole new constitution. That includes ammendig all that articles.Regarding pont 3 - Who is saying that he was ousted for his ties to Chavez? He was ousted because he was repeatedly disregarding supreme court orders. His ties to Chavez are part of the political scenario, that´s why it keeps coming up. But it is irrelevant, one way or the other.

If you want to argue about due process, ok. But the prerogative to judge that belongs to the Supreme Court, he can place a complaint there if he wants. If you think that the Supreme Court is acting ilegaly, yo can try to impeach them, but that is the prerogative of Congress.

Who gave Zelaya, the UN, the OAS, Obama or you the right to act as the revision court of the Supreme Court of Honduras regarding constitutional matters?

Is it? Those ridiculous things about invasion said by Chavez at least did help Micheletti to win many Hondurans. I'm not saying that all, but I guess that many of them did support new president from fear of Chavez's invasion and fear that a new goverment, similiar to venezuelan might by installed in Honduras. And Micheletti did make use of it. Also, worth noticing is that Chavez did tone down his rhetoric seeing that those agressive statements only strengthened new goverment in Tegucigalpa and made it more popular in Honduras.

Jack, I think you have a solid summary. The impeachment process is hazy at best, with seemingly overlapping powers (e.g. the military hovers over everything).

Was Zelaya doing something deemed illegal by everyone? Yes. Yet instead of arresting him, putting him in jail (which they now claim they will do) and then give him a chance to defend his actions, they chose an illegal route.

Tell me where I am wrong:- Only the SCJ has the constitutional right to interpret the Constitution;- If there is a lack of due process that is a matter for the SCJ to decide;-If the SCJ is itself acting ilegal, only the Congress has the right to impeach it.

What I see is Zelaya and a bunch of foreigners trying to usurp those powers.

Ah, and another point.If it was ilegal to exile Zelaya, it is irrelevant to the decision to oust him. If I a court order my arrest and the oficials in charge abuse their power when arresting me, those oficials should be brought to justice. But that is irrelevant to decision that first got me arrest. It doesn´t absolves me of nothing.

You can argue that the SCJ didn´t had the power to oust the president, but acording to article 239 they had. And even their were out of line, it is the Congress that is in charge of impeaching them. Not Zelaya, not OAS, not Obama, not me and not you.

Now just wait that someone will come here demanding evidence that article 239 was breached. So let me answer that preemptively: the SCJ thinks that the evidence exists. The onkly way to overtun this decision in favor of Zelaya is (1) Congress declares the SCJ impeached (which is not going to happen) or (2) hes estages a coup d'etat himself.

Ignoring the legality questions, was this coup (I don't think we have another word to describe the scenario in which armed military men show up unannounced in the dead of night and remove a president from power.)was it even necessary? The referendum was almost certainly going down to defeat. Zelaya had only six months remaining in his term. He lacked support in the Congress, the Supreme Court and, most definitely, the armed forces. What exactly is his path to dictatorship under such circumstances? How do you "dictate" in Honduras without the support of the armed forces?

Greg says: "Surprisingly, I have not yet seen anyone make an argument for how a parliamentary system might have mediated the situation better--Honduran political institutions are so weak it might not have mattered."____

Maybe because it is too obvious: If a country's system is parliamentary, and the chief executive loses the support of his own party he is out. Constitutionally, and without any need to arrest the poor fellow in his sleep.

Point taken about the overall weakness of Honduran institutions. But this really is an easy one.

And the routine-ness of intraparty removals of executives is the central theme of my next book (in particular Chapter Four), which just may need a little postscript about Honduras now!

Well, evidently the Hondurans considered it necessary. I suppose if you lived there, having experienced the violent past and seeing the dictatorships springing up all around, you couldn't be faulted for wanting to be safe rather than sorry. Especially when the 'coup' (and I don't think it was one - this was protecting the constitution) was ordered by the supreme court and had the backing of the congress. Its just really hard to fault them for taking the action they did, especially when you want to place your bet on a questionable future: what might have happened, or might not have happened, over the next 6 months.

Steve, Zelaya HAS been questioning the integrity of the Supreme Court and military command, quite consistently. He did so before the coup and after. He was saying a "technical coup" was going on by the stripping of powers clearly under his control (holding a non-binding poll per the Citizen Participation Law) and firing Gen. Velasquez. He had eyes and ears. A trap was being set. Either Zelaya back down and say to his supporters: "sorry, I am so powerless that I can't even organize a public opinion poll.." or he is forcibly removed from power. Come on. Again, perspective. We're talking about a damn public opinion poll!!!

We know there were lots of meetings between the military high command and the Courts and other institutional actors (NY Times). We know a high level of coordination occurred. We know their legal actions were indefensible...

The only question is how do you deal with a Court that has become politicized and making decisions in no relation to the Law.

Well, I think that the professor has an excessively narrow view of Zelaya's actions. I do agree it was a coup. I also think Zelaya's illegal actions triggered the coup deliberately. With his popularity declining rapidly and 8 months left in his term, he gambled on a reckless course--conflict with the courts, congress and army--and lost. He prefers to be a martyr (Getulio Vargas?) to a cause that is both unprincipled and led from abroad as he had little remaining support within the country. Chavez is relevant because whether with FARC, Colombia and Ecuador problems, the Argentine election scandal or Cuba's re-entry into the OAS, he doesn't give a damn about the legal processes or the OAS Charter. The outcome he wants is to exaggerate the victimization of Latin America at the US's expense and to exploit it politically. Demagogic populists demand enemies or they will be scrutinized themselves. Who wants to look at Venezuela's crime rate? In any case listening to Chavez et. al. define democratic legitimacy is really pathetic. Did he not first attempt to become president through a failed coup? The clear pattern in Latin America is a return to demagogic populism led by Chavez. Zelaya was the latest example. Lastly, minimizing the importance of non re-election provisions of the Honduran constitution is patronizing and risky. Perhaps we might remember Porfirio Diaz and Juan Peron, Somoza and Castro. The dangers of abrogating this are far more serious in Latin America than in other parts of the world. The congress and courts did remove the president without a trial--a coup-- but they did so in defense of their version of the constitutional order. Thus far it is a stalemate. The US is right to be cautious in its response.

"The US is right to be cautious in its response."I don´t think that the US is being cautious in demanding the return of this man power. The cautious thing to do would be demand respect for individual rights and a fair election in November (maybe even sooner).But you have touched in a point that has been very often forgotten in all this discussion. The fact that the real threath to democracy in Latin America is coming from populism, not military coups.Some people seems to believe that this is going to open a precedent and we are going to see military coups spreading through the continent. As a Latin America myself, I think that that is rather unlikely.On the other, bringing this man back to power in Honduras is going to enable and embold the "Bolivarian" thugs.

of Honduras go according to its constitution. 1- No man or government branch has ABSOLUTE power.The doctrine of the separation of powers, involving a system of checks and balances, is basic to liberal constitutionalism. The system of checks and balances begins with the separation through a constitution of judicial, executive and legislative powers.PART V: SEPARATION OF THE POWERS OF THE STATE –It is a function of the Legislative Power to approve or disapprove the action of the Executive Power.Article 322 .- Any public officer to take possession of his office, he shall take the following oath: "I promise to be faithful to the Republic, execute and enforce the Constitution and laws."2- THE REFORM OF THE CONSTITUTION – Only Congress can amend or reform the constitution.Article 373 .- The reform of this Constitution may be ordered by Congress, in regular session, with two thirds vote of all members. The decree will clearly show what article or articles will be reformed for that purpose, these should be ratified by the subsequent legislature (Congress), by an equal number of votes in order for the amendment to be enforced. 3- Proposed an illegal reform to stay in office that goes against our constitutionArticle 374 .- There cannot be any reform, under any case to article 373, nor to the constitutional articles that refer to the form of government, national territory, presidential term, to the ban of being re-elected President of the Republic, The citizen who has already served as president or has taken this role under any title played cannot be President of the Republic for the subsequent period. 4- Nobody is above the law.ARTICLE 321 .- The servers of the State has no special power other than those expressly conferred by law. Performing any act outside the law is null and implies responsibility.5- Congress and the Judicial Power informed Mr. Zelaya that his actions were illegal and against our constitution, he ignored them and kept moving forward with his own agenda. That is why did the Head of the Military Gen. Romero Vasquez Velasquez refused to participate in the reform to the constitution “referendum” on Sunday.ARTICLE 323 .- The officials are the depositaries of authority, legally responsible for their official conduct, subject to the law and never above it. No officer or employee, civilian or military, are obliged to follow orders that are illegal or involve the commission of crime. 6- The Judicial Power and Congress urge Mel Zelaya to resign. He refuses; due to this the Judicial Power asks the military for help in enforcing the law! That is why the military removed Mr. Zelaya from his house.ARTICLE 313 .- The courts will require the help of the public forces(Military) to fulfill their resolutions, if it was denied or not available, it will be requested to the citizens. Those that refused to help will receive full responsibility and penalty of the law. 7- Impeachment of Mel by Congress ARTICLE 205 .- Correspond to Congress the following powers:20. Approve or reject the administrative conduct of the Executive Power, Judiciary Power and the National Electoral Court, General Comptroller, Attorney General and decentralized institutions; 8- Micheletti (former president of congress) as President-ARTICLE 242 .- If the lack of President is absolute, Designee chosen for this purpose by the National Congress, shall exercise the executive power for the remainder time that is left to complete the constitutional period. But in case that the designees for the other three powers were missing, the executive Power shall be exercised by the President of the Congress, and in case that this person is missing then the executive power shall be excercised by the president of the Supreme Court for the remainder time that is left to complete the constitutional period..

Is there no one the American left won't throw under the bus to advance their own ambitions? June 2009 will go down as a month of infamy for the once idealistic (if naive) Democratic party. In one month they've managed to do nothing while democratic protesters are crushed by a tyrannical regime (Iran) and attempted to keep a democratic regime from from stopping a blatantly obvious attempt to establish one-man rule (Honduras). There is NO other way to see these events. History and reality will not be kind to those that equivocate when liberty is at stake.

I was born and raised in Honduras. I am the daughter of an American Citizen born abroad. I lived in Honduras until college age when I moved to the USA. My family still lives in San Pedro Sula, Honduras.I am appalled at the mis-informed in the US. Hondurans legally removed a criminal (18 counts - documented and published). How come you don't get this? Get informed - do your children and grandchildren's future a favor.Those of you who don't think Chavez, Castro, Ortega and Zelaya don't have an agenda will be very sorry some day. There will be nowhere to go anymore for freedom from tyranny if the USA does not support the people. As Abraham Lincoln said in the Gettysburg Address: "that this nation, under God, shall have a new birth of freedom -- and that government of the people, by the people, for the people, shall not perish from the earth." "By the people, for the people". I wouldn't be surprised if Obama and his love of socialism and its criminal leaders replaces "people" with "tyrant".

Our Constitution takes such intent seriously. According to Article 239: "No citizen who has already served as head of the Executive Branch can be President or Vice-President. Whoever violates this law or proposes its reform [emphasis added], as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years."

Notice that the article speaks about intent and that it also says "immediately" – as in "instant," as in "no trial required," as in "no impeachment needed."

Continuismo – the tendency of heads of state to extend their rule indefinitely – has been the lifeblood of Latin America's authoritarian tradition. The Constitution's provision of instant sanction might sound draconian, but every Latin American democrat knows how much of a threat to our fragile democracies continuismo presents. In Latin America, chiefs of state have often been above the law. The instant sanction of the supreme law has successfully prevented the possibility of a new Honduran continuismo.

The primary point of someone in much better position to discuss than any of the posters or the blog's author....Octavio Sanchez in the CS Monitor...

"The Supreme Court and the attorney general ordered Zelaya's arrest for disobeying several court orders compelling him to obey the Constitution. He was detained and taken to Costa Rica. Why? Congress needed time to convene and remove him from office. With him inside the country that would have been impossible. This decision was taken by the 123 (of the 128) members of Congress present that day."

Everyone keeps saying Zelaya was ousted illegally. Here is the actual Honduran Constitution for you all to read. http://pdba.georgetown.edu/Constitutions/Honduras/hond05.html Observe article 374 - "it is not possible to reform the Constitution regarding matters about forms of government, presidential periods, re-elections and Honduran territory." Article 313 gives the Court the authority to use the security forces to implement it's resolutions.

You can change any article but the 7 that are restricted. And 2 things are outright forbidden, guess what 1 of those is. For example, in the U.S. you CANNOT change the Bill of Rights.

Furthermore... Article 239 explicitly states - “No citizen that has already served as head of the Executive Branch can be President or Vice-President. Whoever violates this law or proposes its reform, as well as those that support such violation directly or indirectly, will immediately cease in their functions and will be unable to hold any public office for a period of 10 years.” He stripped himself of the presidency when he ordered all public employees to take part in the poll, in defiance of the Supreme Court, the Attorney General, the National Congress, the Military and his OWN party. (Presidential Decree PCM-020)

In Latin America presidents have always been above the law. This Constitution checks that and they should be applauded for holding their leaders to the letter of the law. There is much more to what happened then there is space to write, this is the end result of years of abuse.

The principle points at issue here seem to be 1. What was the referendum all about ? 2. Why did the Honduran conservatives find it so threatening? 3. Was the referendum legal or not, in spite of what the conservative controlled supreme court and Congress have said? 4. Does the Honduran Constitution provide for a means of dispute resolution, even trial of Zelaya, other than a coup?

In regard to the latter question, the first of the two essays that follow By Alberto Valiente Thoresen suggests that, "they could have followed a legal procedure sheltered in article 205 nr. 22 of the 1982 Constitution, which states that public officials that are suspected to violate the law are subject to impeachment by the National Congress". If that is true, then obviously, regardless of where you come down on the legality of the referendum, there was absolutely no acceptable rational for the coup

Lets take the second issue first.

Alberto Valiente Thoresen’s point that "they could have followed a legal procedure sheltered in article 205 nr. 22 of the 1982 Constitution, which states that public officials that are suspected to violate the law are subject to impeachment by the National Congress". Is just flat out wrong. His Spanish must be poor.

Interpelar does not mean “impeach” My online dictionary translates it as “parliamentary: ask someone for explanations.” I would have translated it as “compel to give testimony”

It says Secretarios de Estado and other officials of the Central Governement, autonomous institutions, state enterprises etc…..about items having to do with the public administration.

This is equivalent to our Congress compelling Cabinet Secretaries and inferior public officials to testify regarding issues or about items for which they are responsible (suspected violation of the law could, but is not necessarily involved). Like here, it does not apply to the President (who they allege has not implemented 80 laws- but who they have not asked or compelled to appear) because that would imply SUBORDINATION of one branch of government (“poder”) by another, which the Constitution specifically prohibits.

"President Zelaya intended to perform a non-binding public consultation, about the conformation of an elected National Constituent Assembly…..

"And Furthermore, the Honduran Constitution says nothing against the conformation of an elected National Constituent Assembly, with the mandate to draw up a complete ly new constitution, which the Honduran public would need to approve. Such a popular participatory process would bypass the current liberal democratic one specified in article 373 of the current constitution, in which the National Congress has to approve with 2/3 of the votes, any reform to the 1982 Constitution, excluding reforms to articles 239 and 374. This means that a perfectly legal National Constituent Assembly would have a greater mandate and fewer limitations than the National Congress, because such a National Constituent Assembly would not be reforming the Constitution, but re-writing it.

To say the vote to be taken is non-binding is meaningless.. Why doesn’t the President just hire Gallup and do a poll if he wants to know what the public wishes? Suppose the results of the “non-binding” consultation are for a Constituente, then who convokes it, how are the delegates selected? The Congress doesn’t have the power, so it must be El Presidente, the only official elected by all the people, and who has been proven to have no scruples about having an illegal election or a poll.

"The Honduran Supreme Court of Justice, Attorney General, National Congress, Armed Forces and Supreme Electoral Tribunal have all falsely accused Manuel Zelaya of attempting a referendum to extend his term in office."

This statement sounds false. They probably accused him of having an illegal referendum (and violating his oath of office). But remember even if Zelaya didn’t intend to run again (he would no doubt be defeated), the Constitutional “stripping of office” per Art. 239 occurs whether you break the disposition, propose its reform or support either directly or indirectly.

Obviously, if there was evidence that Zelaya agrees with Thoresen that:

Such a popular participatory process would bypass the current liberal democratic one specified in article 373 of the current constitution, in which the National Congress has to approve with 2/3 of the votes, any reform to the 1982 Constitution, excluding reforms to articles 239 and 374. This means that a perfectly legal National Constituent Assembly would have a greater mandate and fewer limitations than the National Congress, because such a National Constituent Assembly would not be reforming the Constitution, but re-writing it.

Meaning the Congress can not modify 239 and 374, but the Constituente would not have such a limitation. Clearly if Mr. Thoresen were a Honduran public official, he is one no longer. If the Supreme Court had any writing like this by Zelaya, if they were convinced it was his attention, or if the text for establishment of a Constituente did not rule out its inability to derogate 239 and 374 and Zelaya advocated or supported directly or indirectly the ability to reform those two clauses, well out on his ear.

But get this: a "popular participatory process" would bypass "the current liberal democratic one."

Sounds like “majority popular will” in the following Harlan statement:

"But no constitution or any provision there in should stand in violation of the majority popular will so long as the basic underlying rights of all people, including minorities within the polity, are protected against the episodic passions of the mob, even when they are in the majority. That is Democracy 101."

Poor Hondurans, they are not even protected from the "episodic passions of the mob when it is in a minority.

Our State Department blamed the soldiers for the death of a teenager from Olancho when the crowd was trying to break through the airport fence. And the UN Secretary General blamed the Government of Honduras for using force against the populace expressing its will.

Look, its time to cut the BS, I’ll take the "current liberal democratic"option as opposed to "the popular participatory process."

I’ll even take capitalism in which the shareholders own their companies and in which the people own the government’s bearer liabilities (other than California I.O.Us).

The problem was with Zelaya is that it would take power away from the army or armed forces which is known in countries where there are dictatorships that hinder democracy because the only thing that matters is the power and bypass the town. Zelaya summon What is a plebiscite, the use of people's power to amend a law.